Re: Effect of transfer of copyright on free software licenses?

[Rjack]

Hyman Rosen wrote:
> Alexander Terekhov wrote:
> > "A copyright license is a contract like any other contract"
>
> We say that open licenses are not contracts because their 
> distinguishing feature is that they are a one-way grant from the 
> copyright holder to anyone who wishes to meet the conditions of the
>  license, and unlike contracts, there is no negotiated agreement 
> between the parties.

The following is part of an exchange between Richard Stallman and
Professor Micheal Davis of Clevland State University Law School:

******************************************************************
Richard Stallman wrote:
> i'm not a lawyer, but i fail to understand whether the GPL is a 
> contract or not.
>
> The GPL is not a contract; it is a unilateral grant of permission 
> to do certain things that copyright law normally prohibits.

Once again, I feel that there is another agenda at work here, but the
legalities are crystal clear. A unilateral grant of permission is a
contract; we even have a legal term for such a situation and it is,
unsurprisingly, called a unilateral contract. A contract is an
agreement--which need not be express, but can be implicit, or even an
imposed legal result upon a relationship--binding on both parties. The
only way, therefore, that this mysterious "unilateral grant of
permission" would not be a contract is if it had no legal effect. I
assume, however, that at least some people want the GPL to be
binding--nothing can make it binding except a claim of contract.

There are situations in which people tend to use other words to avoid
the word contract: permission to enter somebody's land, or business,
say, is sometimes referred to as a mere "license," often to avoid
contractual implications. But when these cases are decided, only two
results occur: either they are found unenforceable, in which case
there was no contract in the first place (and thus no enforceable
license), or they are enforceable in which it is inescapable that the
terms of the license and the parties' obligations are addressed. If
those terms are enforceable, they are the product of the contract
between the parties--even if it is only unilateral in nature.

So. Why is this an issue? To allow the GPL legal effect but to avoid
some real or imagined consequences of it being treated as a contract
by the law? I'm afraid you can't have one without the other; to
repeat, if it's enforceable, it is, in essence, and in the end, a
contract.

Mickey Davis

**********************************************************************
http://lists.essential.org/upd-discuss/msg00131.html

Dig your heels in Hyman and stay in denial -- it will ward off reality
untill it comes crashing down around you.

Sincerely,
Rjack